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Constitutional Petition No. 66 of 1985, decided on 5th April, 1986,
‑‑‑S. 22(12)(a)‑‑Collective Bargaining Agent‑‑Authority to negotiate‑ Matters for negotiation stated‑‑Collective Bargaining Agent is authorizes to undertake collective bargaining with employer on matters connected with employment, non‑employment, terms of employment or condition of work other than matters which relate to enforcement of any right guaranteed or secured to it or any workman, by or under any law, other than Ordinance XXIII of 1969 or any award or settlement‑‑Suck Collective Bargaining Agent is empowered to represent all . or any op workmen in any proceedings.
Allied Bank of Pakistan Limited and 2 others v. Labour Appellate Tribunal, Lahore and 2 others 1982 P L C 1 and Karachi Pipe Mill Limited v. Sind Labour Appellate Tribunal and 2 others 1984 P L 1359 ref.
‑‑‑Ss. 22(12)(b) a 34‑‑Collective Bargaining Agent and employer‑‑Foul, stages for settlement of dispute i.e. (i) raising of demand by Bargaining Agent for benefit of workmen; (ii) negotiations between Bargaining Agent and employer; (iii) signing of settlement by such agent on behalf of workmen and by employer and (iv) enforcement of settlement of any right guaranteed to workman under any law, award or settlement Collective Bargaining Agent can act on behalf of workmen during first three stages but cannot enforce right guaranteed or secured to any workman by and under any law.
Oil and Gas Development Corporation, Karachi through its Chief Administrative Officer v. Punjab Labour Court, Central Zone, Lahore and another 1975 S C M R 485rel.
‑‑‑Art. 199‑‑Constitutional jurisdiction, invoking of‑‑Legal question not raised before Labour Court but raised for first time before Appellate Tribunal during arguments‑‑Effect‑‑Petitioner, held, could not be non‑suited on technical ground where law appears to be quite clear with regard to relief claimed.
‑‑‑Ss. 22 & 34‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Establishment paying dues to workmen in addition to providing rent free accommodation in spite of closure of mill‑‑Non‑payment of seventy‑five per cent house rent, in lieu of rent free accommodation, though in violation of peace settlement between employer and employees would not be patently unjustified‑‑Exercise of Constitutional jurisdiction would not be declined by High Court to establishment in view of wrongful assumption of jurisdiction by Labour Court and Labour Appellate Tribunal‑‑Combined Bargaining Agent could, however, raise a demand by submitting charter of demands after expiry of previous settlement for subsequent period.
National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others P L D 1985 Quetta 100 ref.
‑‑‑S. 25‑A‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Order of Labour Court and Labour Appellate Tribunal being without lawful authority and of no legal effect were set aside by High Court in Constitutional jurisdiction‑‑Combined Bargaining Agent, however, was directed to seek legal remedy through proper forum.
Muhammad Sharif and Riaz Ahmad for Petitioner.
K.N. Kohli for Respondent No.l.
Nemo for Respondents Nos. 2 and 3.
Dates of hearing: 25th and 26th March, 1986.
.‑‑This petition is directed against the orders, dated 10th November, 1984 and 2nd June, 1985 passed by the respondents Nos. 2 and 3, respectively. The brief facts leading to the filing of the above petition are that the petitioner had provided residential accommodation to some of its employees free of rent, but at the same time were also paying the rent to them after deducting 25 per cent from the monthly rent amount. It seems that the Board of Directors of the petitioner's company first decided to deduct 50 per cent instead of 25 per cent by a circular, dated 28th February, 1982 from the rent amount which was paid to some of its employees in addition to providing free residential accommodation. It may also be observed that by another circular, dated 20th August, 1983, the petitioner's company decided to deduct the above house rent 100 per cent with effect from 1st July, 1983. In other words not to pay any cash house rent to the employees who were provided residential accommodation free of rent. Respondent No. 1 which is the Union of Bolan Textile Mills, Baleli, Quetta resisted the above action and filed an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the 'I.R.O.') on 13th September, 1983 claiming therein the following reliefs :
"6.‑‑That the respondent further in violation of their final decision of 28‑2‑1982, again on 7‑8‑1982 served upon the C.B.A., the circular order in which it was stated that the fringe benefit (House Rent) would be deducted at the rate of 100% thus the benefit has been totally and illegally withdrawn and this is a clear contravention of the past practice and the custom usage on the part of the respondent for which they have authority in law.
Therefore, in view of the facts mentioned above the applicant humbly pray to set aside the impugned order, dated‑‑‑‑‑with costs."
The above application was resisted by the present petitioner, inter alia, on the ground that the application was time‑barred. Respondent No. l in support of the application examined its President Malik Dad, its Vice‑President Muhammad Qasim and its General Secretary Abdul Manan, whereas, the petitioner examined Akhtar Ali Shah the Personal Assistant Manager. The evidence of respondent No. 1 was to the effect that the petitioner had withdrawn its previous decision of deducting 50 per cent instead of 25 per cent contained in their letter, dated 28th February, 1982 of the house rent amount and that the circular to deduct 100 per cent was in violation of the Peace Memorandum, dated 23rd May, 1982 which, inter alia, provided as follows: -
"That the conditions of service, privileges and amenities enjoyed by the members on 31‑12‑1981 shall not be changed/modified/withdrawn to the detriment of the employees."
Whereas, the evidence of the petitioner was that since they were providing free residential accommodation and as their Mill was closed down long time back, the impugned order was not unjustified and illegal. The above witness also admitted the fact that the enhancement of deduction from 25 per cent to 50 per cent contained in the above circular, dated 28th February, 1982 was withdrawn. The learned 1st Labour Court at Quetta after hearing the parties by its order, dated 10th November, 1984 allowed the above application. The petitioner being aggrieved by the above order filed Labour Appeal No. 19 of 1984, which was dismissed by the learned Labour Appellate Tribunal Baluchistan, Quetta by its order, dated 2nd June, 1985. The petitioner being aggrieved by the above two orders has filed the present petition.
2. In support of the above petition Mr. Muhammad Sharif, Advocate assisted by Mr. Muhammad Riaz Ahmed, Advocate has urged as follows: -
(i) That under section 34 of the I.R.O. the application was not competent by respondent No. 1; and
(ii) That the application could have been filed by the workers or by respondent No. 1 under section 25‑A of the I.R.O.
On the other hand, Mr. K.N. Kohli, learned counsel appearing for respondent No. 1 has contended as under: -
(i) that the petitioner had not raised any such objection either in the written statement or during the arguments before the learned Labour Court and that first time the objection was raised during the arguments before the learned Labour Appellate Tribunal and, therefore, same cannot be allowed to be raised in the writ petition;
(ii) that the learned Labour Court and the learned Labour Appellate Tribunal were competent to decide the case rightly or wrongly;
(iii) that this Court would not exercise the constitutional jurisdiction which would result in miscarriage of justice; and
(iv) that in the alternative, in case, this Honourable Court holds that respondent No. 1 could not have filed the above application under section 34 of the I.R.O. before the Labour Court, the application may be returned to respondent No. 1 for presentation to the proper Court.
3. Mr. Muhammad Sharif, learned counsel for the petitioner in furtherance of his submissions has referred, inter alia, to clause (a) of subsection (12) of section 22 and section 25‑A of the I.R.O. It may be advantageous to reproduce subsection (12) of section 22 as a whole and section 25‑A of the I.R.O., which read as follows: ‑
SUBSECTION (12) OF SECTION 22:
(12) The Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to‑‑
(a) undertake collective bargaining with the employer or employers on matters connected with employment, non‑employment, the term of employment or the conditions of work (other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance or any award or settlement;
(b) represent all or any of the workman in any proceedings;
(c) give notice of and declare, a strike in accordance with the provisions of this Ordinance; and
(d) nominate representatives of workmen on the Board of Trustees of any Welfare institutions or Provident Funds and of the Worker's Participation Fund 'established under the Companies‑‑ Profits (Workers Participation) Act, 1968 (XII of 1968).
"Redress of individual grievances.‑‑ (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or (Collective Bargaining Agent) within three months of the day on which the cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or (Collective Bargaining Agent) the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward or, as the case may be, the (Collective Bargaining Agent).
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or the Shop Steward may take the matter to his (Collective Bargaining Agent) or the (Labour Court) or, as the case may be the (Collective Bargaining Agent) may take the matter to the (Labour Court) and where the matter is taken to the (Labour Court), it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were an industrial dispute.
Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2), or subsection (3) as the case may be.
In adjudicating and determining a grievance under subsection (4), the (Labour Court) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
(6) and (7) were added by the Industrial Relations (Amendment) Act, XXIX of 1973, section 16 were subsequently omitted by the Labour Laws (Amendment) Act, XVII of 1977.
If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
(9)
No person shall be prosecuted under subsection (8) except on a complaint in writing‑‑
(a)
by the workman if the order or decision in his favour is not implemented within the period specified therein; or
(b)
by the Labour Court or Tribunal, if an order or decision thereof is not complied with.
(10)
For the purpose of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court."
4. It may be noticed that under sub‑clause (a) of the above quoted subsection (12) of section 22, a Collective Bargaining Agent has been authorised to undertake collective bargaining with the employer or employers on matters connected with employment, non‑employment, the term of employment or the conditions of work other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by, or under any law, other than this Ordinance or any award or settlement, whereas, sub-clause (b) empowers a Collective Bargaining Agent to represent all or any of the workmen in any proceedings.
It may further be pointed out that the exclusion contained in clause (a) was added by the Industrial Relations (Amendment) Act No. XVI of 1975 by section 11. It may further be noticed that section 25‑A was added by the Labour Laws (Amendment) Ordinance IX of 1972, which provides a remedy by way of an application after serving a grievance notice in the manner provided for in the abovequoted section, which can be availed of by a worker or workman himself or through the Collective Bargaining Agent or under subsection (10), the workers having common grievance arising out of a common cause of action may make a joint application.
5. Mr. Muhammad Sharif, learned counsel for the petitioner has referred to the following cases: ‑
(i) Allied Bank of Pakistan Limited and 2 others v. Labour Appellate Tribunal, Lahore and 2 others, reported in 1982 P L C 1, in which, a learned Single Judge of the Lahore High Court highlighted the distinction between sections 34 and 25‑A of the I.R.O. and pointed out that a Collective Bargaining Agent can move Labour Court only for enforcement of any right guaranteed or secured to it by or under any law, award or settlement, but it cannot apply to a Labour Court for enforcement of a right guaranteed or secured to workers by or under any law, award or settlement. A Constitutional writ petition was, therefore, allowed against the orders of the Punjab Labour Court IX, Multan and the Labour Appellate Tribunal, Punjab.
(ii). Karachi Pipe Mills Limited v. Sind Labour Appellate Tribunal and 2 others, reported in 1984 P L C 1359. In the above case, the facts were that the petitioners had impugned the order of the Labour Court and the Sind Labour Appellate Tribunal, inter alia, on the ground that a Collective Bargaining Agent was not entitled to maintain an application under section 34 of the I.R.O. for enforcement of any right or benefit secured for the benefit of the workers under any law, award or settlement. The above writ petition was heard by a Full Bench. The judgment was delivered by Naimuddin, J. (as he then was). After analysing the various provisions, it was held that section 34 of the I.R.O. could not have been invoked by the Collective Bagaining Agent for the enforcement of right guaranteed to workers under any law, award or settlement in view of the express exclusion contained in the abovequoted clause (a) of subsection (12) of section 22 of the I.R.O. It will be advantageous to reproduce hereinbelow paras. 19, 20 and sub‑para. 2 of para. 21 of the above judgment, which read as follows: ‑
Para. 19.‑‑We are further fortified in our view by the provision of section 22(12) clause (a) of the Ordinance which entitles the Collective Bargaining Agent in relation to an establishment or group of establishments to undertake collective bargaining with the employer or employers on matters connected with employment/ non‑employment, the terms of employment or the conditions of work but this right excludes from its purview matters which relate to the enforcement of any right guaranteed or secured to it or to any workman by or under any law other than the Ordinance or any award or settlement. From this provision it is clear that the Collective Bargaining Agent can undertake collective bargaining with the employer or employers on matters connected with employment, non‑employment, the terms of employment or the conditions of work; but so far as a worker is concerned the rights guaranteed or secured to him under any law or any award or settlement have to be enforced in accordance with the provisions of section of the Ordinance and if the Collective Bargaining Agent could not have collective bargaining for the enforcement of any right guaranteed or secured to a workman by or under any law other than the Ordinance then the intention of the Legislature clearly appears to be that such rights of workman have to be enforced in accordance with the provisions of section 25‑A of the Ordinance and not under section 34 of the Ordinance."
Para. 20.‑‑It was then argued by Mr. Ali Amjad that if the provisions of section 34 are interpreted as are sought to be interpreted by the petitioner it would c4use inconvenience to workmen where more than one workman are denied any right under any law in which case each one of them has to submit his grievance separately. The argument or convenience advanced by the counsel cannot be accepted for then we would be doing violence to the plain language of the Ordinance. If more than one workman are denied any right guaranteed or secured to them under any law, award or settlement they can directly or through Collective Bargaining Agent file a joint application for seeking redress but that application has got to be made under section 25‑A of the Ordinance. Indeed there is ample authority for it in subsection (10) of section 25‑A. Therefore, the argument of convenience is also not available to Mr. Ali Amjad."
Sub‑para. (2) of para. 21.‑‑"There is no doubt that the Collective Bargaining Agent under section 22(12)(b) of the Ordinance has a right to represent all or any workman in any proceeding and in fact section 25‑A(4) of the Ordinance itself also give right to the Collective Bargaining Agent to take the grievance of a worker to Labour Court but the scope of proceeding under sections 25‑A and 34 of the Ordinance are quite different. They have also different implications. Therefore, merely because the Collective Bargaining Agent has a right to represent all or any workman would not give it a right to take matters covered under section 25‑A of the Ordinance to the Labour Court under section 34 of the Ordinance for then the provisions of section 25‑A would become redundant and the conditions or limitation provided in section 25‑A of the Ordinance would also disappear for under section 34 of the Ordinance no such conditions or limitations are provided. It could not be the intention of the Legislature that when an individual takes his grievance to Labour Court he has to comply with the conditions or subject himself to the limitations provided therein but when the Collective Bargaining Agent takes the grievance to the Labour Court under section 34 of the Ordinance, it is not subject to those conditions or limitations. Indeed as already stated subsection (4) of section 25‑A of the Ordinance itself gives a right to the Collective Bargaining Agent to take the matter under section 34 to the Labour Court but it can do so only after the worker or workers have fulfilled the conditions mentioned in subsection (1) of section 25‑A of the Ordinance and not otherwise.
It may be mentioned that the argument of convenience which found favour with the Division Bench of this Court in the case of Chamber of Commerce and Industry does not take into consideration the provisions of section 25‑A (10) of the Ordinance quoted hereinbefore."
6. On the other hand, Mr. K.N. Kohli, learned counsel for respondent No.l in addition to the making of efforts of distinguishing the above judgment of the Full Bench, has relied upon the case of Oil and Gas Development Corporation, Karachi through its Chief Administrative Officer v. Punjab Labour Court, Central Zone, Lahore and another, reported in 1975 S C M R 485, in which a petition for leave was dismissed by the honourable Supreme Court and the order of the Labour Court passed under section 34 and maintained by the Lahore High Court was upheld though the application was filed by the Bargaining Agent for the enforcement of the rights guaranteed to the workers. The above case, in our humble view, has no application to the instant case for more than one reasons, namely, in the above judgment the question whether the above section 34 is applicable or not, was not agitated and secondly, the amendment brought about in clause (b) of subsection (12) of section 22 by Ordinance XVI of 1975 was not noticed.
7. We are inclined to hold that there are four stages for a settlement in terms of labour laws, namely, (i) raising of a demand by a Bargaining Agent for the benefit of workmen, (ii) negotiations between a Bargaining Agent and an employer, (iii) signing of a settlement by a Bargaining Agent on behalf of the workmen and by an employer and (iv) the enforcement of the settlement of any right guaranteed to workmen under any law, award or settlement. A Collective Bargaining Agent is to act on behalf of workmen during the first three stages mentioned hereinabove, but it cannot enforce under section 34 of the I.R.O. any right guaranteed or secured, inter alia, to any workman by or under any law. We are further inclined to hold that under clause (b) of subsection (12) of section 22 of the I.R.O. a Collective Bargaining Agent is authorised to represent ail or any of the workmen in any proceeding in terms of the I.R.O. and not in any proceeding which may be in violation or derogation of the I.R.O. We are in respectful agreement with the view expressed in the above Full Bench case, which' is applicable on all fours to the instant case.
8. This lead us to Mr. Kohli's one of the other submissions, namely,,, that the petitioner had not raised this point before the Labour Court and that first time it was raised during the arguments before the learned Labour Appellate Tribunal and, therefore, this Court should not allow the same in a Constitutional petition. It may be observed that the question that whether Collective Bargaining Agent respondent No. 1 was entitled to maintain the above application in view of the various provisions of the I.R.O. particularly in presence of clause (a) of subsection (12) of section 22 of the I.R.O., was a legal question which could have been raised before the learned Labour Appellate Tribunal, which was factually raised, though during the arguments. In our view, it will not be just and proper to non‑suit the petitioner on the above technical ground, if the law appears to be quite clear in view of the above Full Bench case. We are, therefore, not inclined to entertain the above objection.
9. Adverting to the other submission of Mr. Kohli that whether the exercise of Constitutional jurisdiction by this Court would foster the cause of justice, it may be observed that he has invited our attention to the abovequoted clause of the Peace Settlement which provides that the conditions of service, privileges and amenities enjoyed by the members of the Union on 31‑12‑1981 shall not be changed /modified withdrawn to the detriment of the employees, and has contended that the above deduction of rent more than 25 per cent was in violation of the above term of the Settlement. It has, therefore been further contended by him that the petitioner wish to enforce this breach through the Constitutional petition.
On the other hand, Mr. Muhammad Sharif, learned counsel for the petitioner has pointed out that the enquiry is on the side of the petitioner for more than one reasons, namely (i) all the workers are not getting the rent allowance in addition to getting of free residential accommodation, (ii) that the petitioner's Mills was closed down in 1983 and still is closed and in spite of that the workmen have been paid their dues without any work, and (iii) that this facility has also been withdrawn from the Officers.
Mr. Kohli, learned counsel for the respondent No.l has referred to the case of National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others, reported in P L D 1985 Quetta 100 in which a D. B. of this Court while dismissing a Constitutional petition against the orders of the Labour Court and the Labour Appellate Tribunal observed that once the High Court is seized of the matter, it becomes its duty to cast its eyes not only on one part of proceedings but whole of them and mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. There cannot be any dispute as to the proposition of law propounded in the above cited judgment, but the above citation has no application to the instant case. Since the petitioner's Mill where the workmen used to work is under closure since 1983 and in spite of this, the petitioner had beer, paying dues to its workmen, it cannot be said that the action not to pay 75 per cent house rent in addition to providing rent free accommodation, is patently unjustified, though apparently it is in violation of the above terms of the above Peace Settlement, which might have been enforced through an appropriate proceeding. We are, therefore, not inclined to, refuse the exercise of writ jurisdiction because of the above factum of closure of the Mill since 1983. Furthermore, respondent No.l after the expiry of the above settlement on 31st December, 1983 could raise a demand by submitting the charter of demands for the subsequent period.
9. Adverting to the last submission of Mr. Kohli, learned counsel for respondent No. l that the application may be returned for presentation to the proper Court, it may be observed that in support thereof, he has referred to the case of Vasdev v. General Public and another reported in P L D 1979 Quetta 35, in which, a learned Single Judge of this Court held that the law never intends shutting up a party on technical ground. It was ordered that the application for succession, which could have been filed in the High Court instead of the Court of Senior Civil Judge with the powers of District Judge, should be returned for presentation to the High Court.
On the other hand, Mr. Muhammad Sharif, learned counsel for the petitioner has urged that since the application could not have been filed by respondent No.l without complying the requirements of section
25‑A of the I. R. O., the above request cannot be entertained. It will suffice to observe that as per above judgment of the full Bench of the Sind High Court relied upon by Mr. Muhammad Sharif, a Bargaining Agent can also file an application under section 25‑A of the I.R.O. for the workmen. The questions, whether the same should have been filed after service of the grievance notice and whether there was any limitation, for the time being are not relevant as we are not inclined to go into the above mixed question of fact and law. Since under section 25‑A of the I.R.O., a Collective Bargaining Agent can file an application, we are inclined to order the return of the present application to respondent No.l for presentation to the proper Court in accordance with law.
10. We, therefore, allow the petition and declare the impugned orders as being without lawful authority and of no legal effect, but we order the return of the application to respondent No.l for representation to the proper Court in accordance with law. It will be open to the petitioner to raise whatever legal pleas are available to it. There shall be no order as to costs.
Petition accepted.
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